EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER V. ARABIAN
AMERICAN OIL COMPANY, ET AL.
No. 89-1838
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit
Reply Brief For The Equal Employment Opportunity Commission
1. Since the filing of the petition, another court has determined
that Title VII applies to discrimination abroad by American employers
against American citizens. Akgun v. Boeing Co., No. C89-1319D (W.D.
Wash. June 7, 1990). Following substantially the same line of
reasoning as the decisions cited in the petition (Pet. 14), the Akgun
court concluded that the "most reasonable and compelling reading" of
Title VII's alien exemption, 42 U.S.C. 2000e-1, was that "Congress
intended Title VII to apply abroad (i.e., outside any state) with
respect to the employment of U.S. citizens (i.e., non-aliens)." Slip
op. 6. The court found additional support for this conclusion in the
legislative history cited in the petition. Id. at 8-9; see Pet.
10-11 & n.7. Noting that "the emphasis of the parties" was "on
whether (the court) should adopt the Boureslan holding," the Akgun
court found itself "unpersuaded by the majority opinion in Boureslan,"
Slip op. 5.
The Akgun decision underscores the reasons why this case is
deserving of further review even in the absence of a conflict among
the circuits. The Fifth Circuit's decision stands alone, among
decisions by four other courts and the administrative interpretations
of the statue by the EEOC and the Department of Justice, in holding
that Title VII provides no protection for American citizens abroad.
The issue is recurrent. As Akgun reflects, the Fifth Circuit's
reasoning is unpersuasive and thus unlikely to produce any consensus
regarding Title VII's application to discrimination abroad -- a
straightforward question of statutory interpretation that has
important ramifications for the careers of many Americans and the
national policy against invidious employment discrimination. This
Court's review is appropriate to resolve the uncertainty arising from
the court of appeals' decision.
2. Respondents attempt to obfuscate the nature of our reliance on
Title VII's jurisdictional language and the alien exemption, implying
that these provisions should be examined separately to see whether
either amounts to a "clear" or "affirmative" expression of
extraterritorial intent. E.g., Br. in Opp. 4, 9, 13, 16. Quite
simply, our position is this: Title VII's general jurisdictional
provisions, by their terms, reach discrimination abroad against
American citizens by American employers. The alien exemption, by its
terms, exempts aliens employed outside the United States. This
combination of provisions is an entirely natural way of pursuing two
objectives simultaneously: assuring that Americans will enjoy
substantially the same protection from discrimination by American
employers abroad that they enjoy in this country, while at the same
time avoiding difficulties that could arise from attempts to apply
American law to foreign nationals in foreign states. Read together,
the two provisions also overcome the presumption against the
extraterritorial application of statutes. Whether or not the general
jurisdictional language alone would satisfy the presumption, the
exemption confirms that the jurisdictional provisions reach Americans
employed by American corporations abroad; if they did not, the
exemption would be superfluous. Nothing more is required to satisfy a
presumption whose purpose is, after all, to provide a means whereby
"unexpressed congressional intent may be ascertained." Foley Bros. v.
Filardo, 336 U.S. 281, 285 (1949).
Respondents' contention that Title VII provides only a "negative
inference" as opposed to a "clear" or "affirmative" statement of
extraterritorial intention (e.g., Br. in Opp. 7, 9, 12, 17) rests on a
misconception of the inquiry that the presumption mandates. The
presumption does not impose drafting requirements on Congress --
compelling it to use a particular form in order to assure that a
statute will apply abroad. Nor does it mandate a search in a statute
for a single discrete provision that respondents might characterize as
"affirmative" rather than "negative." Rather, it requires courts to
examine the statute, aided by the customary tools of statutory
interpretation, to determine whether Congress has expressed an
intention to apply the requirements of the law abroad. In this case,
we submit, the combination of Title VII's general provisions and an
exemption that can be given effect only if the statute applies abroad
satisfies that standard. Against that general background, we turn to
some of the points raised by the brief in opposition.
a. Respondents suggest that the alien exemption could perform two
functions consistent with their construction of the statute. Neither
is plausible.
First, respondents assert that "(i)t is likely * * * that the alien
exemption was intended to confirm coverage for aliens residing in the
United States." Br. in Opp. 17 n.14. However, the provision of Title
VII that protects resident aliens is clear on its face and requires no
confirmation. See 42 U.S.C. 2000e-2 (prohibiting unlawful employment
practices directed at "any individual"); Espinoza v. Farah Mfg. Co.,
414 U.S. 86, 95 (1973). Even if it were not, it is singularly
unlikely that legislators concerned about ambiguity would choose so
indirect a way of resolving it; the natural response to such a
problem would be to draft a provision that would expressly include
resident aliens, not one excluding nonresident aliens.
Second, respondents suggest that the exemption could have been part
of a plan to cover American citizens but not aliens in "possessions"
of the United States. Br. in Opp. 17-18 & n.15. This unprecedented
suggestion encounters a host of problems. Most fundamentally, it is
inconsistent with respondents' own view of the presumption against
extraterritoriality. Since these possessions are located outside the
States and territories of the United States (see 42 U.S.C. 2000e(i)),
respondents' argument would entail an extraterritorial application of
American law. See Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381
(1948) (noting that application of Fair Labor Standards Act to Lend
Lease bases involved regulation "outside the territorial jurisdiction
of the United States"); Foley Bros. v. Filardo, 336 U.S. at 285
(explaining Vermilya-Brown as a case in which the presumption against
extraterritorial application was satisfied). Respondents offer no
explanation of how Title VII could satisfy the presumption against
extraterritoriality as to such possessions but not as to any other
territory "outside any State," 42 U.S.C. 2000e-1. Respondents'
suggestion also contemplates that the Congress that enacted the
statute (i) viewed Americans employed by private employers in American
possessions on foreign soil to be more deserving of protection from
invidious discrimination than Americans employed by the same employers
on other foreign soil and (ii) chose to implement that implausible
policy choice by means of an exemption for "the employment of aliens
outside any State," as opposed to a provision directly addressing
American possessions. /1/ There is not the slightest support -- in
the conditions to which Title VII was addressed or its legislative
history -- for the notion that the alien exemption was intended for
that purpose. Finally, unless Congress enacted the alien exemption
with the intention of simultaneously confirming coverage for resident
aliens and excluding it for non-resident aliens in American
possessions (an even more unlikely legislative contortion), this
interpretation of the exemption is inconsistent with the other role
that respondents propose for the same provision.
As we noted in the petition, and as every decision except for the
one in this case has found, the alien exemption makes sense only if
Title VII is intended to apply to American citizens employed by
American employers "outside any State."
b. The alien exemption's legislative history confirms this view; a
committee report indicates that the exemption's purpose is "to remove
conflicts of law which might otherwise exist between the United States
and a foreign nation in the employment of aliens outside the United
States by an American enterprise." H.R. Rep. No. 570, 88th Cong., 1st
Sess. 4 (1963) (emphasis added). The potential conflicts were removed
by excluding coverage of aliens outside the United States -- not by
providing that the Act did not apply outside the United States.
Respondents suggest that this committee report is not authoritative
because it related to a bill that "contained specific language that
referred to 'foreign commerce' and 'foreign nations'" that was deleted
by the time the bill passed the Senate. Br. in Opp. 14-15 & nn.10-11.
According to respondents, the deletion "evidence(s) a decision by
Congress not to have the statute apply to employers operating
overseas." Id. at 15.
Respondents mischaracterize the nature of the deletion and its
implications. The Senate did not delete language focusing on "foreign
commerce" or "foreign nations" from the House version of the bill that
became Title VII. Rather, it deleted general legislative declarations
that set forth the broad purposes of the statute and referred to
foreign commerce only in passing. /2/ The deletion did not amend the
operative provisions of the statute, and it cannot fairly be read to
express any view on the substance of the statute that was enacted.
/3/ In particular, it did not "evidence a decision by Congress not to
have the statute apply to employers operating overseas" (Br. in Opp.
15) -- unless the Senate also decided to restrict the statute's
application to "commerce among the States" or, for that matter to
disavow "the national policy to protect the right of the individual to
be free from (invidious) discrimination." See note 2, supra. Because
the deletion had no effect on the alien exemption, it does not reduce
the force of that provision's legislative history.
c. Respondents also suggest (Br. in Opp. 14-15) that in drawing
upon the jurisdictional provisions of the National Labor Relations
Act, 29 U.S.C. 152(6)-(7), and the Labor-Management Reporting and
Disclosure Act of 1959, 29 U.S.C. 402(c), which in turn refers to the
Labor-Management Relations Act of 1947, 29 U.S.C. 142(1), Congress
should be deemed to have limited Title VII's scope because of
decisions holding that the NLRA and the LMRA do not apply to foreign
seamen whose foreign-flag vessels stop at American ports. Benz v.
Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957); McCulloch v.
Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963). While
it is true that Title VII's jurisdictional provisions were patterned
after similar definitions in other labor statutes, it does not follow
that this Court's decisions under those other statutes limit Title
VII's reach -- or that Congress intended that result.
In both Benz and McCulloch, the issue was whether American statutes
expressed an intention to regulate labor relations between alien
seamen and foreign shipowners whose ships called at American ports.
In Benz, the Court concluded, "Our study of (the LMRA) leaves us
convinced that Congress did not fashion it to resolve labor disputes
between nationals of other countries operating ships under foreign
laws." 353 U.S. at 143 (emphasis added). Similarly, in McCulloch, the
Court framed the "basic" question as "whether (the NLRA) as written
was intended to have any application to foreign registered vessels
employing alien seamen." 372 U.S. at 19 (emphasis added). Adhering to
the holding in Benz, the Court in McCulloch found that the NLRA failed
to describe "the boundaries of the Act as including foreign-flag
vessels manned by alien crews." Id. at 20 (emphasis added). This case
deals with the converse of the situation presented by Benz and
McCulloch. The issue is whether Americans employed by American
corporations abroad retain the protection of an American statute, not
whether aliens employed by foreign employers gain the benefit of
American law by virtue of brief stops in American territory. Thus,
the Court's holdings in Benz and McCulloch are inapplicable. There is
no reason to believe that Congress believed otherwise or attempted, by
means of the use of jurisdictional language in Title VII similar to
that of other statutes, to deprive Americans of protection from
employment discrimination.
3. Respondents challenge our contention that both the Department of
Justice and the EEOC have construed the statute to apply to employment
discrimination by American corporations against American citizens
abroad. Br. in Opp. 9-10 & n.7. In their view, an interpretative
regulation promulgated by the Commission in 1970 limited Title VII to
persons "domiciled or residing in the United States." Br. in Opp. 10
(quoting 29 C.F.R. 1606.1(c) (1971)). Thus, they contend, the
interpretation conveyed by the EEOC's General Counsel to the Senate
Foreign Relations Committee in 1975 "was contrary to the EEOC's own
regulation that was then in force." Br. in Opp. 11. Respondents also
suggest that the interpretation proffered to Congress by the Assistant
Attorney General can be disregarded because its "purpose * * * was
primarily to persuade Congress that Arab boycott legislation was not
needed" and because it contradicted the EEOC's regulation. Id. at 10
n.7.
It is respondents (and not officials who responded in good faith to
inquiries from Congress) who have misread the EEOC's prior regulation.
While the regulation stated that citizens and non-citizens within the
United States were covered by Title VII, it did not say that Americans
abroad were not. Nor did it purport to set out the full reach of
Title VII. Rather, as a part of a section entitled "Guidelines on
discrimination because of national origin" (29 C.F.R. 1606.1 (1971)),
the regulation constituted a portion of the explanation of the EEOC's
position that discrimination based on citizenship had the effect of
discriminating on the basis of national origin. Thus, the regulation
did not speak to the question that the Commission's General Counsel
and the Assistant Attorney General addressed in 1975. Respondents
point to no occasion on which the Department of Justice or the EEOC
has taken the position that Title VII is inapplicable to
discrimination by American citizens against American employers abroad.
Especially in light of the principle that an agency's interpretation
of its own regulations is ordinarily controlling, /4/ there is no
reason to suppose that the Commission's General Counsel responded to
Congress's inquiry regarding Title VII's scope with an authorized
interpretation of the statute. Similarly, the Assistant Attorney
General's testimony was supported by the Justice Department's
responsibility for litigating claims under the provisions of Title VII
-- which parallel those at issue here -- that prohibit discrimination
by the federal government; the testimony cannot be dismissed as an
unfounded attempt to influence legislation.
4. In the petition, we pointed out that the 1984 amendments to the
ADEA were based on the assumption that Title VII applies to
discrimination against Americans abroad and that the court of appeals'
holding would create an anomalous distinction between employment
discrimination based upon age as opposed to race, sex, religion, and
national origin. Respondents reply with a cryptic suggestion that,
unlike the classifications addressed in Title VII, "age is a
culturally neutral factor" and that the Senate sponsor of the 1984
amendments was simply incorrect in his understanding of Title VII.
Br. in Opp. 21 n.18, 22. See Pet. 13 & n.10. We perceive no basis
for the view that age is any more "culturally neutral" than other
factors on which employment discrimination may be based -- and,
evidently, neither did the 1984 Congress. Further, the interpretation
of Title VII propounded by the ADEA amendments' Senate sponsor was
well founded; it was based upon all of the court decisions that had
addressed the issue and testimony by the EEOC's Chairman.
5. We agree with respondents that the policy choices raised by
Title VII's application to discrimination overseas are for Congress.
See Br. in Opp. 20-23. However, we believe that the statute compels
the conclusion that Congress has already spoken to those policy
issues. The balance Congress has struck between the goal of equal
employment opportunity for all Americans and the concerns raised by
the extraterritoral application of Title VII should be respected.
For the reasons stated above and in the petition, certiorari should
be granted.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
JULY 1990
/1/ In 1957, Congress amended the Fair Labor Standards Act, the
statute at issue in Vermilya-Brown v. Connell, supra, to specify the
territory within which that statute would operate. See Act of Aug.
30, 1957, Pub. L. No. 85-231, Section 1, 71 Stat. 514 (adding 29
U.S.C. 213(f)). Presumably, if Congress had intended to provide for
special treatment of American possessions in Title VII, it would have
followed the same direct approach.
/2/ In their entirety, the declarations deleted by the Senate
provided (110 Cong. Rec. 12,811 (1964)):
Sec. 701. (a) The Congress hereby declares that the opportunity
for employment without discrimination of the types described in
sections 704 and 705 (of H.R. 7152, 88th Cong., 1st Sess.
(1963)) is a right of all persons within the jurisdiction of the
United States, and that it is the national policy to protect the
right of the individual to be free from such discrimination. (b)
The Congress further declares that the succeeding provisions of
this title are necessary for the following purposes: (1) To
remove obstructions to the free flow of commerce among the
States and with foreign nations. (2) To insure the complete and
full enjoyment by all persons of the rights, privileges, and
immunities secured and protected by the Constitution of the
United States.
/3/ The reasons why these declarations were deleted are unclear to
us. It may be that, in view of the controversy over the
constitutional footing of the statute, the Senate decided to omit
provisions addressing that matter. See H.R. Rep. No. 914, 88th Cong.,
1st Sess. 50-52 (1963) (additional views of Rep. Meader); id. at
88-94 (minority report); id. at 108-110 (separate minority views of
Reps. Poff and Cramer).
/4/ Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)
(An administrative interpretation of a regulation is "of controlling
weight unless it is plainly erroneous or inconsistent with the
regulation."); Udall v. Tallman, 380 U.S. 1, 16-17 (1965); INS v.
Stanisic, 395 U.S. 62, 72 (1969); Ford Motor Credit Co. v. Milhollin,
444 U.S. 555, 566 (1980).